August 23, 2014 15:14 Filed in: Foreclosure | Deeds
Foreclosure Deed Recording Process in Georgia
Foreclosure in Georgia is a non-judicial process that requires a four week publication in the county organ before the property is cried out on the courthouse steps on the first Tuesday of the month.
Foreclosure deeds in Georgia are typically entitled “Foreclosure Deed” or “Deed Under Power.” The term “Deed Under Power” is derived from the power of sale clause found in the underlying mortgage instrument. The borrower gives the lender power to sell the property in the event of borrower’s default under the terms of the note or security instrument. In Georgia, the security instrument is typically either a “Deed to Secure Debt” or “Security Deed.”
Purchasers of property at Georgia foreclosure sales may receive foreclosure deeds within thirty days of the foreclosure sale. However, Georgia law provides a thirty (30) day period for the lender to rescind the foreclosure sale for statutory cause. Georgia law requires foreclosure deeds to be recorded with ninety (90) days from the date of foreclosure. However, there is no statutory enforcement for this requirement.
Georgia law does not specify whether the lender or the purchaser has the recording obligation. In practice, most lenders tender an unrecorded foreclosure deed to the purchaser. Foreclosure deeds are commonly delivered to purchasers between thirty (30) and ninety (90) days following the foreclosure sale.
If the foreclosing lender has not issued the foreclosure deed and the purchaser wishes to resell the property, the purchaser has few options other than to wait to receive the deed. However, if the lender refuses or fails to provide the deed after thirty days, the lender may be liable to the purchaser for damages. If the deed has been issued, but lost or misplaced, however, it may be possible to obtain permission from a title insurer to issue policies on a recorded copy of the document on the condition that the closing attorney attempts to secure a duplicate original.
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GA. Code 44-14-162 Advertisement and conduct (Georgia Code (2013 Edition))
(a) No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriff's sales in the county in which such real estate or a part thereof is located and unless notice of the sale shall have been given as required by Code Section 44-14-162.2. If the advertisement contains the street address, city, and ZIP Code of the property, such information shall be clearly set out in bold type. In addition to any other matter required to be included in the advertisement of the sale, if the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor to a new owner and an assumption by the new owner of the debt secured by said mortgage, security deed, or lien contract has been approved in writing by the secured creditor, then the advertisement should also include a recital of the fact of such transfer or conveyance and the name of the new owner, as long as information regarding any such assumption is readily discernable by the foreclosing creditor. Failure to include such a recital in the advertisement, however, shall not invalidate an otherwise valid foreclosure sale.
GA. Code 44-14-160 Recordations (Georgia Code (2013 Edition))
Within 90 days of a foreclosure sale, all deeds under power shall be recorded by the holder of a deed to secure debt or a mortgage with the clerk of the superior court of the county or counties in which the foreclosed property is located. The clerk shall write in the margin of the page where the deed to secure debt or mortgage foreclosed upon is recorded the word "foreclosed" and the deed book and page number on which is recorded the deed under power conveying the real property; provided, however, that, in counties where the clerk keeps the records affecting real estate on microfilm, the notation provided for in this Code section shall be made in the same manner in the index or other place where the clerk records transfers and cancellations of deeds to secure debt.
HISTORY: Ga. L. 1975, p. 422, § 1; Ga. L. 2009, p. 614, § 1/SB 141.
GA. Code 9-13-172.1 "Eligible sale" defined; effect of rescision /sic/; damages (Georgia Code (2013 Edition))
(a) As used in this Code section, "eligible sale" means a judicial or nonjudicial sale that was conducted in the usual manner of a sheriff's sale and that was rescinded by the seller within 30 days after the sale but before the deed or deed under power has been delivered to the purchaser.
(b) Upon recision of an eligible sale, the seller shall return to the purchaser, within five days of the recision, all bid funds paid by the purchaser.
(c) Where the eligible sale was rescinded due to an automatic stay pursuant to the filing of bankruptcy by a person with an interest in the property, the damages that may be awarded to the purchaser in any civil action shall be limited to the amount of the bid funds tendered at the sale.
(d) Where the eligible sale was rescinded due to:
(1) The statutory requirements for the sale not being fulfilled;
(2) The default leading to the sale being cured prior to the sale; or
(3) The plaintiff in execution and the defendant in execution having agreed prior to the sale to cancel the sale based upon an enforceable promise by the defendant to cure the default, the damages that may be awarded to the purchaser in any civil action shall be limited solely to the amount of the bid funds tendered at the sale plus interest on the funds at the rate of 18 percent annually, calculated daily. Notwithstanding any other provision of law, specific performance shall not be a remedy available under this Code section.
HISTORY: Code 1981, § 9-13-172.1, enacted by Ga. L. 2003, p. 413, § 1.
Tags: Foreclosure Deed, Deed Under Power, DUP, Georgia Foreclosures